FL: Citizenship denied due to permanent injunction

[Thepreacher]

What is the name of your state? FL


Hi

Can someone whose citizenship application was denied due to an entered permanent injunction (domestic violence) to which defendant pleaded no contest, request to be heard by immigration judge [deporting proceedings] to show she/he was never advised by family court judge of INS immplications of plead to injuction? The purpose being to keep the charge from causing citizenship application being denied again.Thanks if you know about this.

TP

 

[LdiJ]

What is the name of your state? FL


Hi

Can someone whose citizenship application was denied due to an entered permanent injunction (domestic violence) to which defendant pleaded no contest, request to be heard by immigration judge [deporting proceedings] to show she/he was never advised by family court judge of INS immplications of plead to injuction? The purpose being to keep the charge from causing citizenship application being denied again.Thanks if you know about this.

TP

My take is that the person most seriously NEEDS an attorney.

 

[garrula lingua]

Judges take misdemeanor pleas either by written waiver or by oral advice.

I'm sure you were advised of the immigration consequences (along with many other advisements).
If you weren't, then try to appeal the criminal conviction.

Immigration can't change the criminal conviction, nor can they take your verbal assertion about the constitutionality of your plea.

 

[Thepreacher]

Thanks for your replies,

On monday I will be accompany the person in question to the court building to request the records on the case. We want to see if he was in fact not advised of this during the court hearing. Could anyone kindly tell me what is the name of the document we must ask the clerk to let us see? we know the case number, however, I have a feeling the case number only gives us the injuction order which says nothing about what was said during the hearing. Is there a name for the transcribed conversation, etc? thanks in advance.

 

[garrula lingua]

If it was an oral plea, you probably have to purchase a copy of the transcripts from the court reporter (may cost about a hundred).

If it was a written plea, the court will have a blank copy of the standard form used.
You can review the blank form, then he can ask that his file be checked to ensure that there is a signed (by him) copy in his file.

 

[evcalyptos]

What is the name of your state? FL


Hi

Can someone whose citizenship application was denied due to an entered permanent injunction (domestic violence) to which defendant pleaded no contest, request to be heard by immigration judge [deporting proceedings] to show she/he was never advised by family court judge of INS immplications of plead to injuction? The purpose being to keep the charge from causing citizenship application being denied again.Thanks if you know about this.

TP

Why would it make a difference? It was the PR's responsibility to consider the immigration implications before making the plea.

Then, as NOW, the applicant should be consulting with an IMMIGRATION specialist attorney.
Maybe they can re-apply in 5 years, after satisfying the Good Moral Character clause.

 

[Thepreacher]

If it was an oral plea, you probably have to purchase a copy of the transcripts from the court reporter (may cost about a hundred).

If it was a written plea, the court will have a blank copy of the standard form used.
You can review the blank form, then he can ask that his file be checked to ensure that there is a signed (by him) copy in his file.

Thanks. So we appeared at the records office of the court. There is no plea on the record! Please allow me to elaborate the person's situation so that I can try to help him as much as possible.

[I am not an attorney, I am clergy and try to help as much as I can, the people of low income in my community - this gentleman is one of them]

He was married for about 5 years and separated about 6 years ago. After the separation [about 2 months], his spouse filed a petition for injunction for domestic violence. With low financial resources he retained an attorney who agreed to work for a fixed low cost. During the hearing, the judge explained she was there to listen to arguments from both sides and if a "consensus" was not reached, the petition would be taken to trial at a later time.

The spouse [plaintiff] appeared with her attorney and a witness? [a previous girlfriend] who according to the gentleman I represent, never witnessed the behavior of the marriage in question.

The attorney of the gentleman, recommended he would accept the injunction instead of going to trial and refute the accusations. He believes he pleaded no contest, but he is not sure. In view of what I discovered today myself I doubt there was a plea at all.

Nonetheless, as a result of this hearing, he was entered into a domestic violence program. He moved [migrant worker] and was at first unable to complete the program he was entered into. He was summoned to a hearing about the program's completion and due to his change of address did not appear in court and a bench warrant was issued due to FTA. He later completed the program.

When he applied for his citizenship, this arrest was within the 5 year statutory period. The immigration officer advised that because of the "domestic violence" issue his citizenship application would be denied.

A pro-bono immigration attorney reviewed his case [post INS interview] and advised that his case could be solved in the following fashion: the gentleman (PR) should submit to deportation proceedings to appeal before an INS judge that when the injunction was entered he was not advised of the the INS consequences this would have. We are not sure this attorney stated whether the appeal should be based on that the judge/court should have disclaimed this to the defendant or the defendant's attorney should have disclaimed this. What he did say is that because it was never disclaimed to the defendant, he had a case before a deportation judge and be able to obtain his citizenship in the manner I described.


Nonetheless, on his court file [domestic violence court], there is no plea. According to the clerk these cases do not carry a plea. In conclusion, what was the INS attorney making reference to? and on what basis then can this appeal be taken before a judge? is it on what the judge should have disclaimed or what the attorney should have disclaimed? in any event, how can he prove before a judge the lack of "disclaimer" in view of the fact that there is no plea in this case? Many thanks in advance.

Why would it make a difference? It was the PR's responsibility to consider the immigration implications before making the plea.

Then, as NOW, the applicant should be consulting with an IMMIGRATION specialist attorney.
Maybe they can re-apply in 5 years, after satisfying the Good Moral Character clause.

I have heard other cases, (e.i. traffic, DUIs, etc) and the defendants are always advised by the judge of the INS implications of their plea if they are PRs - reason why what the INS attorney mentioned sounded plausible.

The statutory period ends february next year. He has not had any other legal "failures" since this event. In your experience do you foresee him being able to establish good moral character at that time? Thanks for your help.

 

[evcalyptos]

The immigration attorney's advice must be considered over our layperson advice. However, it's a pretty aggressive move; you may want to consult another attorney.
They should be able to advise your friend about the GMC timeline and when that would be discharged.

You might want to look into Form AR-11, and whether or not it was filed, and the consequences of that (it is a required address change notification).

 

[garrula lingua]

I don't believe he pled to a criminal charge of DV.
An 'injunction' is simply a court order to perform or cease action; one doesn't plead to that, but it may be a condition of probation or a deviation program.

It sounds as though this was a hearing where a Protective Order was issued on the basis of DV.
Apparently, his atty advised him not to fight the PO ...
He was also ordered to complete a DV program - probably as an alternative to a conviction of DV.

His criminal court case status has to be better defined. Is there a warrant out for him for Failure To Appear ???

How about going to the Public Defender in that courthouse and asking them to check the status of the case ? They are very familiar with immigration consequences and possibly can work at changing the PO and the BW.

He has two problems - defining his status re the criminal charge, and
his immigration status.
An immigration atty can't answer the relevant questions without more info on the criminal case status and potential resolution.
He needs a criminal atty to resolve/unwind/explain the crim case, and an immigration atty to resolve the consequential INS issues.

Most crim attys are not well-versed in immigration consequences (except PDs-they are).

Good luck.

 

[seniorjudge]

Hi

It seemed this was an independent question from my previous one. In addition, I had not read the latest reply. It does seem this question was indeed answered: "An 'injunction' is simply a court order to perform or cease action; one doesn't plead to that, but it may be a condition of probation or a deviation program"

That is what I believe is the answer, if I am mistaken, please correct me. Thanks.

If you want to be a lawyer and a preacher, you need to learn to stay on the subject.

 

[Thepreacher]

I don't believe he pled to a criminal charge of DV.
An 'injunction' is simply a court order to perform or cease action; one doesn't plead to that, but it may be a condition of probation or a deviation program.

It sounds as though this was a hearing where a Protective Order was issued on the basis of DV.
Apparently, his atty advised him not to fight the PO ...
He was also ordered to complete a DV program - probably as an alternative to a conviction of DV.

His criminal court case status has to be better defined. Is there a warrant out for him for Failure To Appear ???

How about going to the Public Defender in that courthouse and asking them to check the status of the case ? They are very familiar with immigration consequences and possibly can work at changing the PO and the BW.

He has two problems - defining his status re the criminal charge, and
his immigration status.
An immigration atty can't answer the relevant questions without more info on the criminal case status and potential resolution.
He needs a criminal atty to resolve/unwind/explain the crim case, and an immigration atty to resolve the consequential INS issues.

Most crim attys are not well-versed in immigration consequences (except PDs-they are).

Good luck.

Hi Garrula and everyone,

His FTA was resolved long ago. He turned himself in, appeared before the judge and completed the DV program so that's pretty much out of the way. We checked the status of the case and it is closed. So, I am assuming he was never charged with domestic violence although he has a permanent injuction order.

I phoned an immigration attorney who tells me he believes once the statutory period has passed, this gentleman should not have problems obtaining his citizenship. Furthermore, based on the code for denial given by immigration on the denial letter it seems INS itself does not see this injuction as "moral turpitude" . Many thanks for all your help.

 

[seniorjudge]

An injunction is usually a civil action.

A DV charge is usually a criminal action.

Your confusion is understandable.

Some of these new DV laws blur the line between civil and criminal.

I don't know what happened here because I haven't seen all the papers.